ABC’s Ariane de Vogue writes:
Lawyers for President Obama have been working behind the scenes to prepare for the possibility of one, and maybe two Supreme Court vacancies this spring.
Court watchers believe two of the more liberal members of the court, justices John Paul Stevens and Ruth Bader Ginsburg, could decide to step aside for reasons of age and health. That would give the president his second and third chance to shape his legacy on the Supreme Court.
I do believe Stevens will retire and that Judge Diane Wood will be his nominated successor. But I deeply question that Ginsburg intends to step down. As National Law Journal’s Tony Mauro reported a little over a year ago (and, due to a paywall, as conveyed by the WSJ Law Blog):
Not so fast, says Mauro. “If anyone asks you, ‘When is she retiring?’ ” Ginsburg reportedly said at a law clerks’ reunion last June, “tell them I have a great role model in Justice [John Paul] Stevens, who is going strong at age 88.” Ginsburg, 75, would have to sit on the bench until 2021 to match Stevens’s tenure.
- Leah Ward Sears, former Chief Judge of the Georgia Supreme Court
- Neal Katyal, Principal Deputy Assistant Solicitor General, Georgetown Law professor, and winning advocate in Hamdan.
- Harold Koh, State Department legal advisor, former Yale Law School dean
- Elena Kagan, Solicitor General, former Harvard Law School dean
- Cass Sunstein, OIRA administrator, Harvard Law School professor
- Seth Waxman, Chair of WilmerHale‘s Appellate and Supreme Court Litigation Practice Group, former Solicitor General
- Deval Patrick, Massachusetts Governor, former Assistant Attorney General for Civil Rights
After Obama’s firefight with the GOP over the very liberal and quite white Judge Wood, he will send up a moderate/center-left nominee of color. Hence Ward, Katyal, and Koh.
Because Breyer will remain on the bench if Ginsburg retires, there will be no need to fill the “Jewish seat.” That puts Kagan, Sunstein, and Waxman on the back burner for the third vacancy. And only Kagan will be young enough to be nominated by then, given the present robustness of the other justices in the over-70 club (Scalia, Kennedy, Breyer).
Patrick is at the bottom because he is running for reelection this year and I believe Obama will choose a black woman before he puts another black man on the Court. After all, I think Obama himself may be the Court’s third male African-American justice after he leaves office.
UPDATE: Since this writing, I’ve been somewhat disabused of my Harold Koh suggestion. Let me offer Denny Chin and Goodwin Liu as two other possible Asian-American nominees for when Ginsburg steps down NOT this summer.
In my post below, I warn that not every name I bandied about in my quoted column should have been taken seriously. One name that must be taken seriously, however, is Diane Wood. For President Obama, Wood is the perfect successor to Justice John Paul Stevens, should his lagging clerk-hiring be an accurate predictor of his imminent retirement.
First, the basic qualifications: Wood is a well-known liberal judge on the Court of Appeals for the Seventh Circuit. She was the first person President Obama interviewed for what is now Justice Sonia Sotomayor’s seat on the Supreme Court. President Clinton nominated her to the Seventh Circuit in 1995 and she took her seat with the Senate’s unanimous confirmation. She has since emerged as the Circuit’s most identifiable liberal voice amid her famously conservative colleagues, Judges Richard Posner and Frank Easterbrook. That much had already been widely reported in the weeks following Justice Souter’s announcement of his retirement.
Now, what makes Wood the perfect fit for Stevens’s seat?
- THE BEST WOMAN: President Obama will nominate a woman. Period. But Obama will not want to nominate just any political or legal star. Unbound by any other identity concerns from his own political coalition, Obama will nominate the very best woman for the job: the woman that no man–or woman, for that matter–can plausibly contend is his inferior.
- The W.A.S.P. Seat: Justice Stevens is the lone Protestant on a Court staffed by six Catholics and two Jews. As critical mass has made “the Catholic seat” and “the Jewish seat” irrelevant, President Obama will find encouragement in the irony that by nominating Judge Wood, he is preserving a link to the Court’s–and the country’s–past. In this sense, she’s a two-fer: the left’s traditional identity politickers can be satisfied with another step towards the Bench’s gender balance while the right’s neo-identity politickers–notably, the Senate Judiciary Committee’s W.A.S.P.s so perturbed by Sotomayor’s “wise Latina” remarks–can take a break from lamenting where their country has gone.
- PRO-CHOICE: Judge Wood is unabashedly pro-choice. In Planned Parenthood v. Casey, in which Justices O’Connor, Souter, and Kennedy affirmed a woman’s right to choose an abortion while narrowing Roe v. Wade‘s original protections, Justice Stevens argued that Roe needed no modification. Judge Wood’s abortion jurisprudence has proven broader than Casey permits: when she creatively sidestepped the Court’s undue burden standard to find that an anti-abortion organization violated the Racketeer Influenced and Corrupt Organizations (RICO) Act through their protest activities, the Supreme Court reversed her, with only Justice Stevens dissenting.
- A STRONG VOICE: The Court’s liberal bloc will lose its leader upon Justice Stevens’s retirement. He has long served as a powerful counterweight to the Court’s conservative heavy-hitters. Judge Wood will bring with her a decade and a half of sparring experience with Judges Posner and Easterbrook, whose intellectual reputations not only stand as tall as those of any of the Supreme Court’s conservative bloc, but also their forceful personalities rival even Justice Scalia’s. Further, after nominating the prosaic Sotomayor, President Obama will want to put forward a “rock star of the written word,” who, as a Mother Jones reporter described, “Federalist Society members viewed—off the record, of course—as the left’s answer to John Roberts.”
- NON-IVY LEAGUE: Judge Wood earned her undergraduate and law degrees from the University of Texas. Currently, Justice Stevens, a Northwestern Law graduate, is the only member of the Court not to hold an Ivy League law degree.
- UNIVERSITY OF CHICAGO LAW PROFESSOR: Judge Wood taught alongside President Obama on the faculty of the University of Chicago Law School.
- SEVENTH CIRCUIT: Judge Wood sits on the Seventh Circuit, where then-Judge Stevens served prior to his confirmation to the Supreme Court.
- AGE: As Joan Biskupic of USA Today noted on her blog today, Judge Wood’s age–she will be 60 this summer–may not be problematic, given that “President Obama has not been seeking younger candidates for the federal bench as GOP predecessors Ronald Reagan and George W. Bush did.”
Of course, these factors only speak to why Obama will nominate her, not to why the Republicans will support her. They won’t. Not even if she preserves the W.A.S.P. seat and would, however unlikely, vote less liberally than Stevens. The Republican Party in the summer of 2010 will see Wood’s nomination as an opportunity to feed raw meat to their pro-life base in anticipation of the mid-term elections.
However, if Sotomayor was Obama’s pick for expanding the Court’s diversity, Wood will be Obama’s pick for bolstering the Court’s progressivism. After the Republicans put up a near-united front for Sotomayor and Health Care, Obama surely recognizes that the days of gaining a broad consensus vote will not be returning anytime soon. No matter who he nominates next, the vote will be nearly party line. And with the specter of losing a sliver of his Senate majority next November, this summer may be Obama’s only opportunity to nominate the perfect successor to Justice Stevens. Judge Wood’s time has come.